R. v. Regan, 2019 BCPC 46

Citation: R. v. Regan 2019 BCPC 46 Date: 20190215 File No: 40201-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CHAD JOHN REGAN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: J.I. Patsch Counsel for the Accused: C.M. Hunt Place of Hearing: Duncan , B.C. Date of Hearing: February 15, 2019 Date of Sentence: February 15, 2019

Introduction [ 1 ] THE COURT: Chad John Regan is before this court. Mr. Regan has withdrawn an earlier not-guilty plea and has now entered a guilty plea on Count 1 of Information 40201-1. The allegation contained in that count is that on or about the 8 th of September, 2017, he did possess a firearm, namely a shotgun, while he was prohibited from doing so by any order under this Act or any Act of Parliament. That is an offence contrary to s. 117.01(1) of the Criminal Code . [ 2 ] In fact, at the time of this offence, Mr. Regan was bound by a discretionary firearms prohibition for a period of some 10 years.

That was imposed upon him on October 27, 2010, as a result of having been sentenced for four charges, one being criminal harassment, the second being uttering threats to cause death or bodily harm (times two), and for unauthorized possession of a firearm. [ 3 ] The duty of this court is to determine a fit sentence with respect to this present offence, having regard to all of the circumstances and the principles of sentencing contained within the Criminal Code of Canada . Facts Circumstances surrounding the Offence [ 4 ] The Crown has outlined the circumstances with respect to the offence.

No issue is taken with respect to those circumstances and I accept them as the facts. I will provide a brief

summary of those circumstances for the purposes of this sentencing. [ 5 ] As a result of a motor vehicle stop which occurred in the early morning hours of September 8, 2017, an RCMP member engaged with Mr. Regan (hereinafter referred to as the "Offender"). At that time, there was suspicion on the part of the RCMP that they were dealing with an impaired driver. [ 6 ] As a result of that interaction, there was an observation made by the police officer of a long gun case in the back seat of the vehicle being driven by the Offender.

A further search determined that the long gun case contained a 12-gauge shotgun manufactured by Savage and referred to as a “Stevens 311A”. [ 7 ] The engagement between the Offender and the RCMP was cordial and respectful. The Offender indicated to the RCMP that he did not have authorization to have the 12-gauge shotgun in his possession. He indicated that in fact that particular 12-gauge shotgun was owned by his wife. The Offender's wife is Angela Regan. [ 8 ] As a result of that interaction, the police attended at the residence occupied by the Offender and his spouse. Ms.

Regan directed the police to an area where she believed the shotgun was being stored in the house. It was determined that the shotgun was not in the area where she had anticipated it was being stored. At the time that the shotgun was found in the gun case located in the vehicle, there was no ammunition with it, but also there was no trigger lock on the gun at that point. [ 9 ] It is now common ground that the firearm in question is actually owned by Angela Regan.

During the course of this sentencing hearing, I did receive evidence directly from Angela Regan concerning: the ownership of that gun, the fact that she had inherited the gun, that the gun was one that she usually had in her possession, which was stored with a trigger lock in the correct position on it, and it was a gun that she kept separate from any available ammunition, which was hidden in places that were not known to the Offender. [ 10 ] Ms.

Regan was aware that her husband was bound by a prohibition order with respect to that firearm and she indicated that the gun was used by her for hunting activities, but specifically it had been left in the vehicle being driven by the Offender as a result of a recent camping trip in which the parties had been involved. [ 11 ] The police report on one hand, and the evidence of Ms. Regan, and the submission made on behalf of the Offender, on the other, contain a significant difference.

There is a suggestion that the Offender told the police that the gun case had been in the rear of his vehicle for a period of some three months, whereas in fact from Ms. Regan’s evidence it appears that it had only been there for a period of some three days. [ 12 ] The gun in question was one of a series of firearms that had been inherited by Ms. Regan from her now-deceased father. She maintained two guns from that collection, one being the shotgun in question and the other being a hunting rifle. Again, both of these weapons were kept in the possession of Ms.

Regan and in the usual course both were stored, not in a gun locker in their residence, but rather with trigger locks in place and away from any available ammunition in ready sight or beside them. Circumstances of the Offender [ 13 ] Chad John Regan has a past criminal record. He has offences dating back to 1988. Those appear to be essentially property crime offences. He has other offences in Alberta in the 1990s, up through and including 1993.

He has criminal convictions in British Columbia, giving rise to the firearms prohibition orders which were imposed upon him on October 27, 2010, which I have previously mentioned. [ 14 ] The offender is 50 years of age. He has been employed for approximately two years as a heavy duty mechanic. He suffered a work-related injury in October 2018. He is on light duties at present time, receiving a top-up from WorkSafeBC with respect to his income. He is scheduled to have an operation on his shoulder on March 27, 2019.

He anticipates that there will be a three-to four-month period of recovery following that operation, during which time he will be receiving Workers' Compensation payments. [ 15 ] He has no dependants, other than his spouse. She presently is on Employment Insurance. She regularly works as a bartender at a local golf club.

Position of Crown on Sentencing [ 16 ] Crown submits that an appropriate sentence with respect to this matter is a three-month conditional sentence order which would contain, amongst other conditions, a house arrest condition for a period of three months, and if a lesser amount of house arrest time is imposed, then the court should impose strict curfew provisions. [ 17 ] Crown is also seeking a mandatory order under s. 109 of the Criminal Code which would be an additional 10-year prohibition with respect to firearms, and Crown is also seeking a forfeiture order with respect to the shotgun in question, pursuant to s. 491 of the Criminal Code . [ 18 ] The position presented by Crown is based on the fact that the Offender has not had any subsequent criminal convictions since 2010. [ 19 ] Crown also submits that a conditional sentence order is necessary in order to have the required denunciation and deterrence that are required for offences of this nature.

In particular, Crown relies on the Ontario Court of Appeal decision in R. v. Jones , [2005] O.J. No. 2662 . Defence Position on Sentencing of the Offender [ 20 ] Defence submits that in this case, a conditional sentence order of three months is excessive. In lieu of a conditional sentence order of any duration, defence seeks that the Offender pay a fine of $1,000. [ 21 ] The defence characterizes the commission of this offence as being in the nature of wilful blindness.

It is submitted by defence that the Offender in this case did not take the appropriate steps in order to notice the existence of the shotgun case in the rear of his vehicle. It is also submitted that there was no purpose for the Offender having the gun, such as using it in any fashion. But rather, the gun had been left inadvertently in the vehicle which he was driving following the completion of the recent camping trip by the Offender and his spouse. [ 22 ] Hence, as I understand defence's position, deterrence and denunciation are not required in this case for the Offender.

Furthermore the Offender has successfully completed a previous conditional sentence order which was imposed on him back on October 27, 2010, without any allegations of any breaches. [ 23 ] Given the fact that the Offender is receiving part of his income from WorkSafeBC and the fact that the Offender's spouse is on Employment Insurance at present time, the submission is that the $1,000 fine will be sufficient in order to drive home the importance of compliance with orders such as the prohibition order which bound the Offender at the time that this offence was committed. [ 24 ] No case authorities have been presented by defence for consideration by the court.

Analysis Purposes, Objectives, and Principles of Sentencing [ 25 ] Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence and the specific circumstances of the Offender ( see R. v. Shoker , 2006 SCC 44 at paragraph 14 , and R. v. Angelillo , 2006 SCC 55 at paragraph 22 ). [ 26 ] As the sentencing judge, I must direct myself to consider all the principles of sentencing contained in the Criminal Code , but also be mindful that, depending on the nature of the offence committed, certain principles receive more emphasis than others ( see R. v.

McCormick , 2006 ABCA 410 at paragraphs 9 to 12 ). Applicable provisions of the Criminal Code [ 27 ] The purposes and principles of sentencing are found in s. 718 to 718.2 of the Criminal Code . These sections codify those principles and purposes and plainly state the intention and rationale for imposing particular sentences. [ 28 ]

Section 718 of the Code outlines the fundamental purpose of sentencing as follows: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 29 ]

Section 718.1 sets out a fundamental principle of sentencing and directs that a sentence must be proportionate to the gravity of the offence and the degree of the offender's responsibility.

[30]

Section 718.2, under the heading "Other sentencing principles", directs that courts must impose sentences that take intoconsideration the following principles, such as aggravating and mitigating circumstances. [31] Sentences must also be similar to sentences imposed on similar offenders for similar offences committed in similarcircumstances. An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.

Allavailable sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or tothe community should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. Case Authorities Relied Upon and Considered [32] The decision in R. v. Jones, supra, has been referred to this court, not for the factual matrix detailed in that decision, but ratheras guidance for the imposition of sentences in matters of this nature. Mr.

Jones was sentenced for an offence under s. 117.01 (1) and alsowith possessing a weapon for a purpose dangerous to the public peace contrary to s. 88, being a modified 12-gauge shotgun. The chargesarose out of a lengthy police standoff. [33] The Jones decision describes a number of facts which are not at all consistent with the facts that are before this court. Theoffender in Jones received a conditional sentence order which was then appealed by Crown. The majority decision in R. v. Jones came tothe conclusion that the original conditional sentence order imposed by the sentencing judge was in error.

However, as a result of thesuccess that the offender in that particular case had achieved while still bound by the original conditional sentence prompted the OntarioCourt of Appeal to maintain the imposition of the conditional sentence order, notwithstanding what they believed to be the errorcommitted by the sentencing judge. [34] The minority decision in the Jones case made a determination that there should be an actual custodial sentence and would haveimposed a term of imprisonment of two years less a day. [35] It appears that at the time of the hearing of the decision in Jones, the accused in that case had served a period of five months ofthe conditional sentence order and the minority decision would have directed that Mr.

Jones serve an additional seven months on theremaining portion of the sentence as requested by Crown; but for Crown’s position the minority would have required him to serve incustody the time remaining on the original sentence, which was two years less a day of conditional imprisonment and three years ofprobation. [36] The Jones decision emphasizes, in both the minority and the majority decision, that in offences of this nature, that deterrenceand denunciation are the prime operative factors for consideration when imposing a sentence. [37] The minority decision relies on the case of R. v.

Proulx (2000), 2000 SCC 5 , 140 C.C.C. (3d) 449, [2001] 1 S.C.R. 61(SCC). Specifically at paragraph 15 of the Jones decision, the court notes that when evaluating the danger to the community, twofactors should be taken into account: (1) the risk of the offender re-offending, and (2) the gravity of the damage that could ensue in theevent of re-offence. [38] At the final sentence of paragraph 15, the Court of Appeal says as follows, and I quote: If the risk of a re-offence is minimal, the damage that could follow were the offender to re-offend should also be taken intoconsideration.

Where the risk of re-offending is minimal but the possibility of prejudice is great, a conditional sentence should not beimposed. [39] The minority decision goes on to say at paragraph 19 as follows, and I quote: The primary function of a prohibition order is the protection of the public. Parliament, in providing for prohibition orders, recognizedthat the community is placed at danger by the unlawful possession of firearms. The very presence of guns in the community poses a riskthat they may somehow come to be used.

The mere possession of guns by persons who have already committed crimes that provide thebasis for prohibition orders constitutes a great danger to the community. [40] Paragraph 20 of the minority decision goes on to say as follows, and I quote: A prohibition order works to the advantage of the offender when being sentenced on the conviction that gives rise to the order.

Byaddressing the protection of society, the making of such an order allows the court to pay greater heed to the rehabilitation of the offender,and reduce the weight on the need to separate the offender from society. [41] The majority decision of Jones starting at paragraph 47 says as follows: [47] Turning to the principle of denunciation, we note that the respondent's criminal conduct attracted a good deal of notoriety in theThunder Bay community. In the circumstances, this may be one of those situations, referred to by Lamer C.J.C. in R. v.

Proulx [citationnoted above], where a conditional sentence does have a denunciatory impact. At para. 105, the Chief Justice observed: The stigma of a conditional sentence with house arrest should not be underestimated. Living in the community under strict conditionswhere fellow residents are well aware of the offender's criminal misconduct can provide ample denunciation in many cases.

In certaincircumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his orher sentence in the community than in prison. [48] With respect to the principle of general deterrence, these reasons are meant to send a clear message to the community at large.People who wilfully disobey firearms prohibition orders and who knowingly engage in dangerous and disruptive behaviour can expect toreceive severe sentences. [49] As for the principle of specific deterrence, apart from the punitive aspects of the respondent's conditional sentence order, he

should know with certainty that if he breaches the terms of his order, he will likely serve the duration of the order in jail. As well, if he chooses to engage in further criminality, he should not expect lenient treatment from the courts. [ 42 ] The case of R. v. Jones clearly points out that although a conditional sentence order is available for offences of this nature, the courts must not lose sight of the principles of general deterrence and specific deterrence when considering fit sentences.

Aggravating Factors [ 43 ] Taking into account the aggravating factors in the circumstances, I include the fact that the firearm had been carelessly left in the back seat of the vehicle, although the Offender's spouse takes some responsibility for that occurrence. The fact that the Offender was bound by a prohibition order, and he knew that the shotgun was often taken by his spouse for use as a protection device while the parties were camping, he should have taken much greater care in ensuring his compliance with the terms of the prohibition order that he had been bound by for several years.

Mitigating Factors [ 44 ] I do take into account the fact that the Offender in this case has not come before the court since his last sentencing back in 2010. He appears to be living a constructive and productive life. He is making a contribution to society through his work effort.

He was cooperative at the time that he was dealing with the police when he was found in possession of the shotgun and made a clear admission that he did not have the necessary documentation in order to permit him to be in possession of that shotgun. [ 45 ] I also take into account the acknowledgment of Angela Regan as to her role in the events giving rise to the shotgun being left in the rear of the vehicle being driven by Mr. Regan at the time he was stopped by the police. Conclusions [ 46 ] I am of the view, given the direction of the decision in R. v.

Jones , that anything less than a conditional sentence order would not meet the necessary requirements of denunciation and deterrence in offences of this nature. As noted in Jones , prohibition orders serve an important function.

There is certainly a safety concern within the community that people who are bound by prohibition orders must take all precautions in order to ensure their compliance with the terms of those orders. [ 47 ] I am also taking into account that a conditional sentence order for a period of 90 days, in my view, would at the high end of the range for this particular offence in these circumstances.

I am of the view that a conditional sentence order in this case should be shaped in order to accommodate the Offender's physical recovery and his necessity to obtain medical intervention with his shoulder operation scheduled on March 27, 2019. [ 48 ] I will ask Mr. Regan to please stand. Mr. Regan, I am going to sentence you on a conditional sentence order. It will be of a duration of 39 days. That will run until March 25, 2019. [ 49 ] The terms and conditions of the conditional sentence order will be as follows: [ 50 ] 3001: You must keep the peace and be of good behaviour.

You must appear before the court when required to do so by the court. You must notify the court or your conditional sentence supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation. You must remain in British Columbia unless you have prior written permission from the court or your conditional sentence supervisor to leave the province.

You must carry the written permission when you are outside the province. [ 51 ] 3101: You must report in person to the conditional sentence supervisor, and it will be the Boundary Road address here in Duncan, British Columbia, by 3:00 p.m. today, or rather I am going to make that 3:30 p.m. today, being Friday, February 15, 2019, and after that you must report as directed by the conditional sentence supervisor. [ 52 ] 3201: When first reporting to the conditional sentence supervisor, you must inform him or her of your residential address and phone number.

You must not change your residence or phone number without written permission from your conditional sentence supervisor. [ 53 ] 3209: For the duration of this order, you must remain inside your residence or within 10 metres of the front door of your residence or on the lot of your residence, under house arrest 24 hours per day each day.

You must present yourself immediately at the door to your residence or answer the phone when any peace officer or conditional sentence supervisor attends at your residence or calls to check your compliance with the house arrest condition of this order. [ 54 ] You may be away from your residence during the house arrest hours with the written permission of your conditional sentence supervisor. Such permission is to be given only for compelling reasons.

You must carry the written permission when you are outside your residence during the house arrest hours. [ 55 ] You may also be away from your residence during the house arrest hours: (

a) while in the course of your employment or when travelling directly to or returning directly from your place of employment. If requested, you must provide a conditional sentence supervisor with details of your employment, including, I am going to say, the name of your employer, contact particulars for your employer, location, and hours of work; (

b) in the event of a medical emergency, and then only while at a healthcare facility or when travelling directly to or returning directly from the facility. If requested, you must provide your conditional sentence supervisor with written confirmation that you went to the facility, signed by a representative of the healthcare facility to which you went; I am going to put in (

c) in the presence of a person approved of in writing by your conditional sentence supervisor. You must carry the written permission when you are away from your residence during the house arrest hours. [ 56 ] 3401: You must not possess or consume alcohol, drugs, or any other intoxicating substance except in accordance with a medical

prescription. [ 57 ] 3610: You must not possess, either personally or through another person, any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, or explosive substance, anything that resembles a weapon or a firearm, any weapon as defined in s. 2 of the Criminal Code , or any related authorizations, licences, or registration certificates. [ 58 ] 3611: You must not reside in a residence in which any other person keeps or stores any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, or explosive substance. [ 59 ] THE ACCUSED: Excuse me, sir, am I able to go home today under that section?

She still has the rifle. [ 60 ] THE COURT: Well, she may have to make arrangements to -- [ 61 ] THE ACCUSED: Okay. [ 62 ] THE COURT: -- get that sorted before you return to the residence. So that is the only other weapon that is around, is it? [ 63 ] THE ACCUSED: Yes, I believe so, yeah. [ 64 ] THE COURT: All right. Well, she may want to be making some phone calls while you are signing these documents, in order to make the arrangements with the gentleman whom she mentioned. [ 65 ] THE ACCUSED: Okay. [ 66 ] THE COURT: All right.

I am not going to put term number 3613, re: the reporting to the police station, I think we have covered that off. [ 67 ] I will grant the other -- well, I will grant one of the other orders being sought by Crown and that is with respect to the 10-year prohibition under s. 109 of the Criminal Code . [ 68 ] I am now going to turn to the application for forfeiture of the shotgun, being the firearm subject of this matter.

I have heard the evidence of Angela Regan with respect to the ownership of that gun and the fact that it is a family heirloom, and the fact that she is a person who is qualified to have possession of that gun. [ 69 ] On the basis of the evidence I have before me, I am not going to make the forfeiture order the Crown is seeking.

Rather, I will permit the gun to be returned to Angela Regan pursuant to s. 491(2) of the Criminal Code , and I am doing so on the basis that I have determined, based on the evidence before me, that she is the lawful owner of that gun. [ 70 ] She is present in court and is aware of the terms of the conditional sentence order which prohibits her husband from residing in a residence where other firearms may be stored or kept. [ 71 ] MS.

HUNT: Correct. [ 72 ] THE COURT: And as I understand it, she is prepared to take the appropriate steps in order to ensure that there will be full compliance with that provision of the conditional sentence order. [ 73 ] All right. Anything further that I need to address? [ 74 ] MS. PATSCH: I don't believe so. [ 75 ] MS. HUNT: I don't think so. [ 76 ] THE COURT: All right. Again, Mr.

Regan, just so that you fully understand, you have served a conditional sentence order in the past, so you are aware of how it works. [ 77 ] THE ACCUSED: Yes. [ 78 ] THE COURT: You are aware that if there is a failure to comply with the conditional sentence order, the default position that is usually advanced by Crown is that they will seek to have it collapsed and that any remaining portion of the conditional sentence order would actually be served in a custodial sentencing. [ 79 ] So all the terms and conditions that I have outlined, as you understand, these are all things you must do.

They cannot be regarded as something in the nature of an inconvenient suggestion. These are conditions of a jail sentence, but you have the privilege of serving that jail sentence within the community. [ 80 ] THE ACCUSED: Yes. [ 81 ] THE COURT: All right. Thank you. (REASONS CONCLUDED)